Voters in Houston and the Dallas area challenge clothing...

1of6Jillian Ostrewich, who is married to a Houston firefighter, is pictured wearing the T-shirt she wore to a Harris County polling place for early voting in October 2018, when a pay parity measure for firefighters was on the ballot. According to court documents, election officials told her she could not cast her vote with the logo showing, so she turned her T-shirt inside out and was able to proceed.Photo: Credit: Pacific Legal Foundation.

2of6Jillian Ostrewich, the wife of a Houston firefighter, said she was asked to turn her Houston Fire Fighters shirt inside out at a polling station earlier this week, even thought the shirt didn't appear to break state election law. The fire union said around 25 other firefighters had been asked to cover their generic fire department shirts.
>>>Photo: Courtesy of Jillian Ostrewich

3of6Jillian Ostrewich, a wife of a Houston firefighter, was asked to turn her Houston Fire Fighters shirt inside out before she could vote. She posted about the situation on her Facebook page, which had more than 1,500 shares by Thursday morning.Photo: Jillian Ostrewich

4of6People are shown at the polling location held at the Harris County Public Library Barbara Bush Branch, 6817 Cypresswood Drive in Spring, Tuesday, November 6, 2018.Photo: Melissa Phillip, Staff photographer / Houston Chronicle

5of6Half of Harris County voters took advantage of a new program that allowed them to cast their ballots outside of their designated precinct during the Nov. 5 elections.Photo: Melissa Phillip, Staff photographer / Houston Chronicle

6of6Jillian Ostrewich, who is married to a Houston firefighter, is pictured wearing the T-shirt she wore to a Harris County polling place for early voting in October 2018, when a pay parity measure for firefighters was on the ballot. According to court documents, election officials told her she could not cast her vote with the logo showing, so she turned her T-shirt inside out and was able to proceed.Photo: Credit: Pacific Legal Foundation.

A Houston woman who was forced to turn a firefighters T-shirt inside out at the polls and a Dallas-area man who tried to vote in his Trump MAGA cap are suing a long list of public officials in federal court here for violating their free speech rights.

The lawsuit comes in the wake of a U.S. Supreme Court ruling in June invalidating a Minnesota law that banned voters from displaying “issue oriented” apparel at the polls. The case filed in Houston federal court Thursday on behalf of two Texas voters was brought by the Pacific Legal Foundation, a California-based nonprofit advocacy group that won the free speech victory in the Minnesota case.

The conservative foundation wants a Houston judge to overturn the Texas law that restricts what people can wear when they vote. Texas is one of several states that still have clothing restrictions on the books. The concern is not just that voters won’t feel free to express themselves, but also that enforcement by poll workers will be “arbitrary and erratic.”

Douglas Ray, an special assistant overseeing election issues at the Harris County Attorney’s Office. said the county will defend itself but Texas Attorney General Ken Paxton — who was also sued — will likely take the lead. County officials last dealt with this issue in 2010, when voters showed up at the polls with Obama-related gear, Ray said. President Barack Obama was not on the ballot, but several measures that reflected his policies were, he said.

“What we tell the election judge is they have the power to adjudicate when they think electioneering is going on and when it’s not,” said Ray. “We tell them to make that determination based on a totality of the circumstances and if it’s consistent with advocacy for somebody or some party that’s on the ballot.”

In the case of the firefighters shirts, Ray acknowledged the county was aware the shirts caused friction at the polls. “We had a lot of trouble with that during the last election because there were people wearing these yellow shirts with red lettering that said ‘Vote for Prop B’ but they were almost identical to a shirt that just said ‘Houston Fire Fighters.’”

He said the shirts had the same colors, logo and lettering but one had “Vote for Prop B” and one didn’t. The county attorney’s office advised election judges that the yellow shirts were problematic if they said something specific about voting.

“But that is just advice,” Ray said. “The election judge in that situation makes the adjudication.”

The Harris County District Attorney’s Office, also named as a defendant, is reviewing the lawsuit, and spokesman Dane Schiller said, “We are focusing on the constitutionality question raised by the lawsuit and will respond in court at the appropriate time.”

Paxton, the Dallas District Attorney and elections officials could not be immediately reached for comment.

Jillian Ostrewich is married to a Houston firefighter and wore a yellow T-shirt with the Houston Fire Fighters image at her polling place last October, during early voting when a proposition on fire fighter pay parity was on the ballot. According to court documents, election officials at the Metropolitan Multi-Service Center on West Gray Street told her she could not cast her vote with the logo showing. She turned her t-shirt inside out and was able to proceed.

“It’s unconscionable that election judges have the power to infringe on the right to wear something as benign as a Houston Fire Fighters t-shirt,” Ostrewich said in a press statement. “When people let little things like an election dress code go by, all of a sudden you’re losing your freedom.”

Her co-plaintiff, Anthony Ortiz, of Carrollton, was told by poll workers he could not vote unless he removed his “Make America Great Again” cap. In his case, President Donald Trump, who made the cap his trademark on the campaign trail was not on the ballot.

“I just wanted to wear my hat,” Ortiz said in the release. “There's no name on it, and even if you associate it with the President, he wasn’t on the ballot so it’s silly to ban it. This law is too broad, incredibly unfair and should be challenged.”

The civil rights lawsuit asserts the Texas law violates their First Amendment and due process rights and those of other voters.

Brandon Rottinghaus, a political science professor at University of Houston, said the Supreme Court ruling found that broad restrictions on what voters wear to the polls violated free speech. A more narrow law could pass muster, but Texas has not amended its apparel restrictions since the June ruling, he said.

“States kept these laws on the books to maintain some degree of order and transparency or minimal advocacy inside the polling places,” said Rottinghaus. “The courts in Texas would likely find the enforcement of these laws unconstitutional. That may spur Texas to make a move to change the law to comply with the court ruling.”

“I doubt we will see Texas challenge this holding from the Supreme Court,” the political science professor added. “There isn’t a clear political upside to challenging the law on this.”

The Texas law is more specific than the Minnesota one that the Supreme Court addressed last year, which could help or hurt the case, according to David Coale, a constitutional law expert at Lynn Pinker Cox & Hurst in Dallas. The Minnesota law prohibited voters from wearing political badges, buttons or other political insignia to the polls, while Texas law prohibits inside or within 100 feet of the voting site the wearing of badges, insignia, emblems representing any a candidate, measure or political party appearing on the ballot or to the conduct of the election.

“The Supreme Court said it was a legitimate state interest to have a polling place free of distracting political activity. But by doing so, it still requires the election official to make judgment calls about what ‘relates to’ the election…and also means that the official can get it wrong,” Coale said. “The argument that a ‘MAGA’ hat ‘relates to’ the subject of this election is not a strong one. I think that is why the Pacific Foundation focused on this case as its test case, to get some law made on how far away from the specific subject of an election you can be and still ‘relate to’ it.”

Gabrielle Banks covers federal court for the Houston Chronicle. She has been a criminal justice and legal affairs reporter for nearly two decades, including staff work at the Pittsburgh Post-Gazette and The Los Angeles Times, and freelance work for The New York Times, The Mercury News, Newsday and The Miami Herald. She has a graduate degree in journalism from Columbia University. Before her years as a reporter, she worked as a teacher, social worker and organizer.